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November 30, 2010


The opinion of the court was delivered by: (Judge Munley)


Before the court are the parties' motions for summary judgment in consideration of the Third Circuit Court of Appeals' mandate in this case. Having been fully briefed, the matter is ripe for disposition.


Plaintiff Eric Viola has been employed as a police office by the Village of Throop, Pennsylvania since 2000. (Defendants' Statement of Material Facts as to which no genuine issue remains to be tried (Hereinafter "Defendants' Statement") (Doc. 23) at ¶ 6). As a full-time police officer, plaintiff was a member of the Throop Police Officers Association and employed pursuant to a collective bargaining agreement. (Id. at ¶¶ 7-8).

Plaintiff testified on May 18, 2006 at a hearing regarding a petition for a protection from abuse ("PFA") filed by his ex-girlfriend in Lackawanna, Pennsylvania county court. (Id. at ¶ 9). The judge at that hearing did not issue the PFA. (Plaintiff's Statement of Facts in Dispute (hereinafter "Plaintiff's Statement") (Doc. 28) at ¶ 9). Though they did not testify, Defendants Police Chief Neil Furiosi, Borough Councilman Tony Chrzan and Mayor Stanley Lukowski were present at the hearing. (Id.).

The Borough suspended plaintiff with pay on June 9, 2006. (Defendants' Statement at ¶ 10). The Borough informed plaintiff of his suspension by letter. (See Defendants' Statement, Plaintiff's Deposition (Exh. 1), Exh. 7).*fn2 As reasons for the suspension, the letter reported that during the week of May 29, 2006, plaintiff had been observed "going into [his] residence several times during [his] shift, and remaining [there] for approximately one-half of [his] entire shift." (Id.). Plaintiff, the letter claimed, had also twice failed to respond to calls from the Communications Center. (Id.). During this period of suspension, the Defendant Borough deducted sick time from plaintiff's account. (Defendant's Statement at ¶ 14). After plaintiff complained that this deduction was improper, the Borough restored his sick time. (Id. at ¶ 15).

On June 15, 2006, the Defendant Borough again wrote the plaintiff, informing him of a hearing scheduled for July 5, 2006. (Dep. Exh. 8). The letter noted that plaintiff had been subjected to a disciplinary action which had a potential effect on his pay and employment with the Borough. (Id.). At the hearing, the letter stated, plaintiff would "be given an opportunity to respond to these allegations before Throop Borough Council and offer any evidence" plaintiff possessed which would allow him to reduce or eliminate the disciplinary action he faced. (Id.).

A hearing on plaintiff's suspension took place on July 11, 2006. (Defendants' Statement at ¶ 21). Counsel represented plaintiff at the hearing. (Id. at ¶ 22). Plaintiff testified at this hearing. (Id. at ¶ 23). A witness, Charles Reed, testified for the plaintiff at this hearing. (Id. at ¶ 24). This witness testified at the hearing and in his deposition that others had committed the same offenses--leaving their assigned posts during shifts--for which the plaintiff was punished. (Deposition of Charles Reed, Exh. 5 to Defendants' Statement (hereinafter "Reed Dep.") at 6-7). One officer took time away from his shift to start vehicles belonging to his busing company. (Id. at 7). Reed could not recall officers--except for plaintiff--being punished by the Borough for such behavior. (Id. at 9-10). He testified that he was "not aware" of whether others in the police force were disciplined for such behavior. (Id. at 15). The Borough suspended the plaintiff for ten days without pay after this hearing. (Defendants' Statement at ¶ 25).

Plaintiff filed a complaint in the Court of Common Pleas of Lackawanna County, Pennsylvania on August 31, 2006. (Doc. 1-2). Defendants removed the case to this court on September 28, 2006. (Doc. 1). One week later, they filed a motion to dismiss the complaint. (Doc. 2). The court denied the motion to dismiss in part and granted it in part. (Doc. 14). Plaintiff then filed an amended complaint. (Doc. 15). Count I of the amended complaint, brought pursuant to 42 U.S.C. § 1983, alleged that defendants violated plaintiff's due process rights by suspending him with pay indefinitely and without pay for ten days without giving him an opportunity to be heard. (Id.). Count II, also brought pursuant to Section 1983, contended that the defendants retaliated against the plaintiff by suspending him without pay for ten days after he filed a grievance over his initial suspension. (Id.). Count III raised a claim for violation of plaintiff's right to be free from governmental interference with family relationships, a state claim for invasion of privacy, and a claim of publicity given to a private life. (Id. at 6-9). Plaintiff claimed that these wrongs arose from the PFA action dismissed against him. Count IV was a failure to train claim against the defendants, who allegedly received no training about providing due process before suspending an officer.

After discovery closed, defendants filed a motion for summary judgment. (Doc. 22). On August 5, 2008, the court granted the defendants' motion and closed the case. (See Doc. 33). Plaintiff filed a motion for reconsideration, and when the court denied this motion appealed. (Docs. 34, 35, 40, 41). On July 22, 2010, the Third Circuit Court of Appeals affirmed this court's opinion in part and reversed that opinion in part. (Doc. 43). The Appeals court upheld summary judgment on plaintiff's retaliation claim but reversed this court's opinion on the due process claim. The Appeals Court remanded the case to this court with instructions to reconsider the case in light of Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir. 2009), which concluded that a protected property interest could exist when a public-employee plaintiff was suspended, and not terminated. The court also directed that this court's "inquiry on remand . . . include an analysis of the factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976) in the context of the property interest recognized in Dee." Such an "inquiry," the court stressed, "requires a heightened government interest where the government provides process only after deprivation." (Doc. 44 at 4).

After receiving this opinion, the court ordered the parties to file briefs addressing the issues raised by the Third Circuit. Defendants filed a brief as directed. Plaintiff filed a motion for summary judgment, a statement of material facts and a brief in support of that motion. The parties then briefed the plaintiff's motion, bringing the case to its present posture.


As this case is brought pursuant to 42 U.S.C. § 1983, the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental ...

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